DNA Evidence: Is it Foolproof?

In 2004, the passage of Proposition 69 mandated the collection of DNA samples from all felons, and from adults and juveniles arrested for or charged with specified crimes, and submission to a state DNA database; and; starting in 2009, from adults arrested for or charged with any felony.
Last year, California began taking DNA upon arrest and expects to nearly double the growth rate of its database, to 390,000 profiles a year from 200,000.

The state is accumulating a statewide DNA database to be used to solve crimes. In order to solve crimes, the system will search for matches between database DNA and other profiles once a week, from now into the indeterminate future — until one day, perhaps decades hence, an arrestee might leave a drop of blood or semen at some crime scene.

Courts have generally upheld laws authorizing compulsory collection of DNA from convicts and ex-convicts under supervised release, on the grounds that criminal acts diminish privacy rights. Law enforcement officials say that DNA extraction upon arrest is no different than fingerprinting at routine bookings and that states purge profiles after people are cleared of suspicion. In practice, defense lawyers say this is a laborious process that often involves a court order. (The F.B.I. says it has never received a request to purge a profile from its database.) While many civil rights activists see law enforcement obtaining and filing this genetic information as a potential violation of privacy, others worry over the evidence for different reasons.

Dangers Associated with the Perceptions of Evidence
Some have warned that courts should be cautious in relying on DNA evidence. The problem with DNA is that if you get a match the evidence is so strong and compelling it almost guarantees conviction.

The idea that concerns many defense lawyers is that juries may begin to perceive that when DNA evidence is introduced into a court case it will encourage these men and women to ignore everything else presented. While DNA evidence has helped to better assure innocence or guilt in many cases, there is no evidence that it should be perceived as the absolute truth. Defense lawyers go to lengths to establish their own contexts into which each piece of evidence is explained and, like any evidence, its placement and purpose in the crime is something only the victim or perpetrator will ever know beyond a reasonable doubt.

Relying on Evidence a Consistent Fear as the Science of Detection Evolves
Concerns of evidence biasing juries is not a new concern in courtrooms. Whenever science uncovers a new way for detectives to approach crimes the new technology is often perceived as more incriminating than established methodology or evidence. Examples include items such as the polygraph or "lie detector." Oftentimes when a person submits to a polygraph and the results are found to be either inconclusive or detecting deception many assume this indicates guilt. However, the biological processes that the polygraph examines allow for errors not always associated with guilt. This is why polygraphs are inadmissable in courts unless ordered by a judge; they create a false sense of truth that can greatly damage juries ability to weight both sides of an issue.

The Ability to Fabricate DNA Evidence?
Last year, scientists in Israel showed that one can fabricate DNA evidence, calling into question the credibility of what has been considered the gold standard of proof in criminal cases.

Nucleix, a Tel-Aviv-based life sciences company, was able to create credible DNA evidence that could be used to finger the wrong person, proof that even genetic evidence can be manipulated (beyond planting a hair or used cigarette) just like other physical traces.

To make the fake DNA, all the researchers needed was a small sample of the DNA they wanted to plant (such as that from hair or lingering in saliva left on a discarded coffee cup) and blood from a donor. Donor blood was centrifuged to separate DNA-containing white cells and DNA-free red cells. The researchers then expanded the filched DNA into a larger sample size via whole genome amplification and added it to the DNA-free red blood cells from the donor. Blood that matched the genetic profile of the person to be framed—not the donor—was created.

Nucleix was also able to replicate a deceptive double helix just by working off genetic profiles in a police database. Building a small collection of common genetic variations—425—for different genome points, they were able to drum up a fabricated sample.

This development calls into question the presumed infallibility of this forensics golden child—by showing that it can be fabricated. Since we're creating a criminal justice system that is increasingly relying on technology, we need to examine the implications of fake DNA.

New California Case on the Confrontation Clause

Many criminal defense attorneys in California believe that the California state courts have resisted following United States Supreme Court precedent which protects the rights of criminal defendants. Recently, though, a California appeals court had no choice but to follow precedent when dealing with the Confrontation Clause.

First, some background, though.

In 2004, the United States Supreme Court issued a landmark decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Crawford v. Washington, 541 U.S. 36 (2004).

The Confrontation Clause of the Sixth Amendment (applicable to the States through the Fourteenth Amendment) provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.”

The purpose of the Confrontation Clause is to determine whether a witness is telling the truth, usually by requiring the prosecution to present the witness before the trier of fact, i.e., the jury, so that the accused can confront and cross-examine the witness. For many years prior to Crawford, the controlling standard for admitting statements that unavailable witnesses made to other persons was that of Ohio v. Roberts, 448 U.S. 56 (1980). According to the Roberts Court, if a witness is unavailable, that witnesses’ testimony can be admitted through a third person if it bears “adequate indicia of reliability” falling within a “firmly rooted hearsay exception” or has “particularized guarantees of trustworthiness."

In Crawford v. Washington, supra, the United States Supreme Court changed all that and held that the use of a spouse's recorded statement made during police interrogation violated the defendant's Sixth Amendment right to be confronted with the witnesses against the defendant where the spouse, because of the state law marital privilege, did not testify at the trial.

The Crawford decision had a profound effect upon the ability of prosecutors to prove their cases through the use of evidence which had previously been admissible via various exceptions to the hearsay rule, allowed by Roberts. Crawford explicitly states that any out-of-court statement that is "testimonial" in nature is not admissible, unless the declarant is unavailable to testify in court, and the defendant has had a prior opportunity to cross-examine him or her.

Last year, the United States Supreme Court, expanding the Crawford decision, held that a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Sixth Amendment's Confrontation Clause as set forth in Crawford v. Washington. Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 174 L.Ed.2d 314]

In an important California decision issued on February 24, 2009, the Fourth District Court of Appeal followed Crawford and Melendez-Diaz and issued an opinion holding that in a prosecution for possession of a controlled substance, the laboratory report of the substance is testimonial, such that the defendant has a Sixth Amendment right to confront the actual analyst who performed the analysis and completed the report. People v. Benitez (2010) Feb 24, G041201.

In Benitez, appellant was charged with possession of methamphetamine and at the jury trial, the supervisor of the analyst who analyzed the controlled substance testified as to the contents of the report prepared by the analyst. The supervisor did not take part in the analysis or observe the procedure. A single-page document (the RFA), containing chain of custody information and identifying the submitted substance as containing methamphetamine, was introduced.

Initially, the court affirmed the judgment, finding no Sixth Amendment violation. However, the California Supreme Court granted review and directed the appellate court to reconsider in light of Melendez-Diaz v. Massachusetts, supra.

On remand from the California Supreme Court, the Court of Appeal reconsidered and agreed that the report was testimonial as it was used against appellant to establish an element of the offense and the analyst prepared it knowing its sole purpose was criminal prosecution. The court rejected the prosecution’s argument that the existence of an established hearsay exception, such as a business record exception, created an exception to confrontation clause requirements.

This is a case which will help persons accused of crimes require the prosecution to present live witnesses instead of reports to prove a critical element of the offense in drug cases, and in other cases.

Wrongful Convictions

WRONGFUL CONVICTIONS.
Since DNA evidence became an accepted method of establishing presence at a crime scene, there have been over 250 post-conviction exonerations of serious crimes using DNA, almost 20 were death penalty convictions.

The question is, how well does our criminal justice system work to avoid wrongful convictions?

There is no doubt that there are bad people out there that need to be apprehended, prosecuted, and sent to jail for a long time. But are we sure we always get the right person?

Without a doubt, there are sincere and competent efforts by law enforcement, attorneys, jailers, and analysts, who all do difficult work in order to keep us safe. But the 5th Amendment to the Constitution promises that no one be deprived of life, liberty, or property without due process of law. Due process is apparently not an easy target.

DNA is present in only 5-10% of cases, and even then it can be lost or destroyed. But other methods commonly used for convictions, things taken for granted as proof, are often flawed.

Eyewitness identification is an example, the greatest cause of wrongful convictions. Important social science research shows that the human mind does not work like a tape recorder, that memories can be easily contaminated. Various factors can change a person's recollection including stress, the pressure to make an identification, and even the way suspects or photos are
lined up.

Other evidence can be wrong as well. Some forensic techniques have never been given the same rigorous scientific evaluation as DNA testing, and some that are accurate can be improperly conducted or stated in such a way that they appear more precise than they actually are. Also, 25% of those exonerated by DNA gave a false confession. Why? Duress, intoxication, and mental impairment are some of the reasons. And there can be misconduct when evidence is withheld, is handled, or lost, when there is coercion, and when unreliable jail house snitches testify in exchange for some incentive. Court appointed defense attorneys are overworked.

Some within the system call for reform. Nationwide, recommended reforms are proving to increase the accuracy of the system. Reforms include procedures used in line-ups, the recording of interrogations, laws providing prisoner access to DNA evidence and the preservation of evidence, and national forensic oversight.

It is time we examine our system to do the best we can to avoid wrongful convictions. People assume it can never happen to them or a loved one, until it does.

More on your rights during an arrest

Can I be interrogated after my rights are read to me?

You can be interrogated without an attorney if you give up, and are aware that you are giving up your right to have an attorney present. If you decide to allow yourself to be interrogated without an attorney present then change your mind, the interrogation must stop. If the interrogation continues after you request the presence of an attorney and you keep talking, what you say may still be used against you.

It is also possible you might have to perform physical tests. For examples, if you are suspected of driving under the influence of alcohol, it is possible to be asked to undergo a test to measure the level of alcohol in your body. If you deny that test, your drivers' license will be suspended
and your denial will be used as evidence against you in court. After you are arrested you are granted three local phone calls. You are required to pay for additional phone calls.

When should I hire an attorney?

It is important to contact an attorney as soon as possible if you are arrested for a serious crime. An attorney will have a better idea what you should or should not say to police officers during interrogation. An attorney can also explain the process to you, your family and friends.

Attorney Mario Rodriguez has over 28 years of experience and is a State Certified Criminal Law Specialist. For more information call 760-347-7771.

What to know if you are arrested

What is an arrest?

An arrest occurs when you are taken into custody. Being, "in custody," basically means you are not at liberty to go where you please. Nevertheless a police officer can detain and interrogate you if they believe you were involved in a crime.

For example, a police officer can detain a suspect if he is seen carrying a large box near the scene of a robbery. Employees of a store can also detain someone if they think that person has stolen something from that store.

If you are detained or arrested remember that you do NOT have to answer any questions, except for giving your name and address as well as showing identification if asked.

What rights do I have if I am detained?

You do have certain rights when you are arrested. Before an officer of the law can ask you questions they must advise you that you have the right to remain silent. And that anything you say can and will be used against you. You have the right to have an attorney present during your interrogation.

These rights are known as "Miranda rights," and are guaranteed by the Constitution of the United States. If these rights are not read to you before any questioning occurs, an attorney can ask that anything you said during interrogation not be used against you in court. That does not mean that your case will get dismissed. This also applies to information you volunteer without the questioning of police officers.

Attorney Mario Rodriguez has over 28 years of experience and is a State Certified Criminal Law Specialist. For more information call 760-347-7771.